“Article 3(2) of the Act indicates that the employee representative on the Board shall be protected against dismissal and other deterioration of working conditions in the same way as union representatives within concerned or similar areas.
The Act, however, is silent on the grounds or procedures for dismissal of other Board members. This was noted as an issue of concern by the SCA during its 2012 review of the DIHR.
The DIHR reports that its Rules of Procedure have been amended to include a provision by which the Board of Directors can encourage a member to resign, in view of the circumstances of a particular case. The SCA does not consider that this change is sufficient to ensure that members have access to an independent and objective dismissal process.
The SCA is of the view that in order to address the Paris Principles requirements for a stable mandate, which is important in reinforcing independence, the enabling legislation of an NHRI must contain an independent and objective dismissal process, similar to that accorded to members of other independent State agencies.
The grounds for dismissal must be clearly defined and appropriately confined to only those actions which impact adversely on the capacity of the member to fulfill their mandate. Where appropriate, the legislation should specify that the application of a particular ground must be supported by a decision of an independent body with appropriate jurisdiction. The dismissal must be made in strict conformity with all the substantive and procedural requirements as prescribed by law. It should not be allowed based solely on the discretion of appointing authorities.
The SCA is of the view that such requirements ensure the security of tenure of the members of the governing body and are essential to ensure the independence of, and public confidence in, the senior leadership of an NHRI.
The SCA encourages the DIHR to advocate for appropriate amendments to its law to provide for an independent and objective dismissal process.”